Recently the Supreme Court decided that due to the Free Speech protection of the First Amendment of the U.S. Constitution that even trademarks that are lewd, profane, or racial slurs are protected.
This reverses decisions of lower courts that had upheld the 2014 finding of the USPTO, The United States Patent and Trademark Office Lanham Act. The 1946 Lanham Act bans trademarks that may be considered offensive or that, “disparage persons living or dead…or bring them into contempt or disrepute.”
The case before the Supreme Court centered on an Asian-American band called The Slants, but their decision bolsters the Washington Redskin’s NFL team’s fight to retain the trademark on its nickname, which was once used to refer to the bloody scalps of Native Americans.
In 2014, the U.S. Patent and Trademark Office (PTO) ruled that the Washington NFL team’s name was “disparaging to Native Americans,” and cancelled six of its federal trademark registrations. The team has been appealing that verdict ever since.
A district court in Virginia upheld the cancellation in 2015, and so the team appealed to the Fourth Circuit, which put the case aside while The Slants case—officially Matal v. Tam—was considered by the Supreme Court.
After the verdict was announced, the Washington Redskins team and its brazen owner Daniel Snyder celebrated the newly endowed constitutional protections granted to their trademark “The Team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” Washington’s attorney Lisa Blatt said in a statement.
“The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion.”
The law at the heart of Matal v. Tam was the 1946 Lanham Trademark Act, described above. This act was passed when President Truman was in office.
In 2011, the USPTO ruled that the Asian American rock band and its founder Simon Tam could not trademark “Slants” because it would violate the act. Mr. Tam strongly disagreed with the verdict. He began to give lots of interviews explaining, in his view, the band was trying to reclaim the racial slur and use it instead as a “badge of pride.”
Justice girl’s clothing company used this reclaiming concept recently on a pair of athletic leggings with the motto, “Run like a girl.”
“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court,” Tam said in a statement on Facebook. “This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.” If you have questions about this decision or a trademark you are considering filing, contact an experienced Chicago trademark lawyer today.
Thanks to our friends and contributors from The Law Offices of Konrad Sherinian for their insight into trademarks and free speech.